Exhibit 10.11 Employment Agreement between Quintek Technologies, Inc.
and Xxxxxx Xxxxxxxx dated March 12, 2004.
EMPLOYMENT AGREEMENT
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THIS AGREEMENT is made on March 12, 2004, by and between Quintek
Technologies, Inc. ("QUINTEK"), and Xxxxxx Xxxxxxxx ("Executive"), with
reference to the following facts:
A. QUINTEK is in the business of providing hardware, software and
services for the Document Management Industry;
B. QUINTEK desires to retain EXECUTIVE for his experience and ability
on a formalized basis in the position of President;
C. Executive desires to accept such employment upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, and for other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as follows:
1. Employment and Duties.
1.1 Executive shall serve as President of QUINTEK. Executive shall
perform duties and actions necessary or advisable within legal or ethical bounds
to promote the continued success of QUINTEK'S business, including but not
limited to sections 1.1.1 and 1.1.2 below and subject to the instructions,
policies and limitations which may be set from time to time by its Board of
Directors (the "Board"). Executive agrees to serve on the Board upon request and
upon QUINTEK obtaining Directors' and Officers' Insurance.
1.1.1 Sales Management
(a) Attract, hire and fire sales staff
(b) Hold sales staff accountable to meet quarterly goals as
agreed upon by the executive management team
(c) Provide sales reports to the CEO on a weekly basis
(d) Provide quarterly budgets for sales departments
1.1.2 Production Management
(a) Manage, staff and supervise production facilities and
daily production operations within quarterly budgets agreed upon by the
executive management team
(b) Provide quarterly budgets for production departments
1.2 Executive shall devote his entire professional time, ability and
attention to the business of QUINTEK during his employment with the exceptions
noted in 1.3 below. Executive shall not directly or indirectly render any
services of a business, commercial or professional nature to any other person or
organization, whether for compensation or otherwise, without the prior written
consent of the Board.
1.3 QUINTEK hereby provides consent for Executive to continue working
in an advisory capacity within his pre-existing relationships with Sherpa
Business Solutions as an advisor which is not in competition with QUINTEK, as
long such involvement does not detract from his responsibilities at QUINTEK.
1.3.1 Executive's agrees that his relationship with Sherpa is
as an advisor. Executive agrees he will not receive compensation for
referring business to Sherpa.
1.4 Executive acknowledges and agrees that his services to
QUINTEK are of a special, unique and extraordinary character and
further acknowledges and agrees that a breach of any of the covenants
or agreements contained in this Agreement (including but not limited to
Sections 2.2 and 7 hereof) is likely to result in irreparable and
continuing damage to QUINTEK for which there will be no adequate remedy
at law. Accordingly, in the event of such breach QUINTEK shall be
entitled to injunctive relief and/or a decree for specific performance,
and such other and further relief as may be proper (including monetary
damages, if appropriate).
2. Term.
2.1 The term of employment shall be for Four (4) years.
2.2 Executive agrees to provide QUINTEK with ninety (90) days written
notice prior to terminating this Agreement.
2.3 If Executive is terminated prior to the fourth anniversary of this
Agreement for reasons other than "for cause" or if he becomes "Disabled" (as
defined herein), QUINTEK will provide Executive with twelve (12) months' notice
and continued compensation prior to terminating this Agreement. If, however,
QUINTEK does not provide Executive with twelve (12) months' notice or provides
less than twelve (12) months' notice, it shall provide Executive with an
equivalent amount of pay in lieu of notice for all or any portion of the twelve
(12) months' notice not provided. Such pay in lieu of notice is in addition to
any other sums which may be owed to Executive pursuant to this Agreement. Any
pay in lieu of notice shall constitute severance pay ("Severance") and shall be
paid over the course of the pay in lieu of notice period in accordance with
QUINTEK's regular payroll practices at the rate of his then-current base salary,
less standard payroll tax withholdings. In no event shall QUINTEK be required to
pay Severance if Executive resigns, is terminated after the third anniversary of
this Agreement for any or no reason, if he is terminated because he has become
"Disabled" or if he is terminated at any time "for cause", other than as set
forth in Paragraph 2.6. Notwithstanding the foregoing, in the event that
QUINTEK's Recast Profits (as defined in Paragraph 3.3) for the twelve (12) month
period prior to termination amount to less than Two Million Dollars
($2,000,000), QUINTEK shall pay a separation benefit equivalent to three month's
base salary at Executive's then-current rate, less standard payroll tax
withholdings.
2.3A Notwithstanding anything to the contrary in this
Agreement or Paragraph 2.3 above, at any time during a 90 day
probationary period commencing on the date of this Agreement,
Executive's employment is deemed "at will" and Executive may be
terminated with or without cause; and in such termination event
Executive shall not be entitled to any compensation or separation
benefits described in this Agreement, other than earned Salary, auto
allowance and expenses described in Paragraphs 3.1, 3.4 and 4.
Executive shall retain the 250,000 shares of Series A Preferred Stock
described in Paragraph 6 herein and shall not be entitled to any other
equity compensation described herein.
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2.4 As used herein, the term "for cause" shall be limited to the
following:
2.4.1 Executive's continued failure or habitual neglect to
perform his duties as set forth in Section 1 of this Agreement after
receiving written notice of the alleged deficiencies and having had an
opportunity to improve; or
2.4.2 Executive's engaging in any activity or conduct which is
specifically precluded by this Agreement, including any activity
competitive with or intentionally injurious to QUINTEK; or
2.4.3 Intentional malfeasance or misfeasance or gross neglect
of duty engaged in by Executive while carrying out his duties owing to
QUINTEK under this Agreement; or
2.4.4 Executive's impairment due to alcohol or other substance
abuse which in the reasonable judgment of QUINTEK affects or interferes
with, or may affect or interfere with, Executive's performance or
capacity to properly discharge Executive's duties, such impairment not
to include an isolated incident occurring off the premises during
non-working hours; or
2.4.5 The commission by Executive of a felony or a crime
involving moral turpitude (whether or not prosecuted), the charge or
indictment of Executive by a governmental or prosecutorial authority of
the same or the pleading by Executive of no contest (or similar plea)
to the same, whether or not committed in the course of his employment;
or
2.4.6 Executive's committing any act of dishonesty against
QUINTEK or using or appropriating for his personal use or benefit any
funds or properties of QUINTEK, unless such use or appropriation was
specifically authorized by the Board or the Chief Financial Officer in
writing.
2.4.7 Executive's failure, in the reasonable judgment of
QUINTEK, to meet, within six (6) months of the date of this Agreement,
those employment objectives and goals mutually agreed upon by Executive
and QUINTEK and which are attached hereto as Exhibit B.
2.5 This Agreement shall not be terminated by any merger or
consolidation where QUINTEK is not the consolidated or surviving corporation or
by any transfer of all or substantially all of the assets of QUINTEK. In the
event of any such merger or consolidation or transfer of assets, the surviving
or resulting corporation or the transferee of the assets of QUINTEK shall be
bound by and shall have the benefit of the provisions of this Agreement, and
QUINTEK shall take all steps necessary to ensure that such corporation or
transferee is bound by the provisions of this Agreement.
2.6 If Executive is terminated prior to the fourth anniversary of this
Agreement "for cause" as defined by Paragraphs 2.4.1 and 2.4.4, QUINTEK shall
pay Executive a separation benefit equivalent to one month's base salary at his
then-current rate, less standard payroll tax withholdings ("Separation
Benefit").
2.7 QUINTEK may terminate Executive if he becomes Disabled, such
termination to be made in QUINTEK's sole discretion. For the purposes of this
Agreement, "Disabled" shall mean that Executive is unable to perform his duties
hereunder, either with or without a reasonable accommodation, as the result of
his incapacity due to physical or mental illness or condition, and such
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inability continues for at least thirty (30) consecutive calendar days or equals
or exceeds sixty (60) calendar days during any consecutive twelve (12)-month
period. If Executive is terminated prior to the third anniversary of this
Agreement due to his becoming Disabled, QUINTEK shall pay Executive a separation
benefit equivalent to three month's base salary at his then-current rate, less
standard payroll tax withholdings ("Disability Benefit").
2.8 As a precondition to paying the foregoing Severance, Separation
Benefit or Disability Benefit, QUINTEK may require that Executive re-confirm his
obligations under Paragraph 7 and execute a general release of any and all
claims he might have against QUINTEK, whether arising out of his employment or
termination of employment, other than QUINTEK's obligation to pay the Severance,
Separation Benefit or Disability Benefit, as the case may be. Furthermore, any
salary, severance, separation benefit or disability benefit or other amounts due
to Executive following termination may be offset against any amounts due to
QUINTEK from Executive.
3. Compensation.
3.1 As compensation for services hereunder, Executive shall receive a
salary of $12,500 per month, less standard payroll tax withholdings (the
"Salary"), during the term of this Agreement, subject to adjustment as set forth
in Paragraph 3.2 below.
3.2 If QUINTEK's quarterly Gross Revenue shall exceed or equal the sum
of $900,000, Executive's Salary for the following quarter shall be increased to
the sum of $15,000 per month, less standard payroll tax withholdings. If
Quintek's quarterly Gross Revenue shall exceed or equal the sum of $1,200,000,
Executive's salary for the following quarter shall be increased to the sum of
$18,000 per month, less standard payroll tax withholdings. If Quintek's
quarterly Gross Revenue shall exceed or equal the sum of $1,500,000, Executive's
salary for the following quarter shall be increased to the sum of $24,000 per
month, less standard payroll tax withholdings.
If QUINTEK's quarterly Gross Revenue decreases at any time, Executive's
Salary shall be decreased to the corresponding monthly salary described in this
Paragraph, subject to a final reduction to the base Salary amount set forth in
Paragraph 3.1 above. For the purposes of this Agreement, "Gross Revenue" shall
be defined as QUINTEK's gross revenue for the applicable quarter as calculated
by QUINTEK's regular accountant(s).
3.3 In addition, Executive will be eligible to receive an annual bonus
based upon the Recast Profits of QUINTEK over the prior twelve (12) month
calendar/fiscal year period. If QUINTEK's Recast Profit Margin for the prior
twelve (12) month calendar/fiscal year period is less than six (6%) percent then
Executive will not receive any bonus. If QUINTEK's Recast Profit Margin for the
prior twelve (12) month calendar/fiscal year period equal or exceed six (6%)
percent, then Executive will be paid a bonus of three (3%) percent of Recast
Profits, less standard payroll tax withholdings, within thirty (30) days of such
year end. For each additional one (1%) percent of Recast Profit Margin over and
above six (6%) percent of Recast Profit Margin for the prior twelve (12) month
calendar/fiscal year period, Executive will receive an additional bonus of one
(1%) percent of Recast Profits less standard payroll tax withholdings, within
thirty (30) days of such year end, such additional bonus to be prorated for each
additional one (1%) percent in Recast Profit Margin over and above the sum of
six (6%) percent of Recast Profit Margin for the prior twelve (12) month
calendar/fiscal year period. For example, if at the end of calendar/fiscal year
2004, QUINTEK's Recast Profits for the prior year amount to $994,200 then
Executive would be paid the sum of $99,552 within thirty (30) days. For the
purposes of this agreement, "Executive's Compensation" is defined as Executive's
salary, car allowance (not to exceed Five Hundred Dollars ($500) per month and
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interest paid on Executive's loans (if any) to QUINTEK, as calculated by
QUINTEK's regular accountant(s). For the purposes of this Agreement, "Recast
Profits" shall be defined as net profits before interest, taxes, depreciation
and amortization (EBITDA), less Executive's Compensation. For the purposes of
this Agreement, "Recast Profit Margin" shall be defined as the quotient of
Recast Profits divided by Gross Revenue. See Exhibit A for example.
3.4 Executive will be paid a car allowance of Five Hundred Dollars
($500) per month during the term of this Agreement. This automobile allowance
will be QUINTEK's sole obligation with respect to Executive's leased or owned
automobile; Executive will maintain the costs of license, insurance and
maintenance during this period. In addition, Executive accepts such automobile
allowance on such terms and conditions as QUINTEK may establish from time to
time regarding the payment of an automobile allowance to its employees.
3.5 Executive shall be entitled to all other employment benefits
provided by QUINTEK to its full-time employees as set forth in QUINTEK's
Employee Handbook, which is subject to revision from time to time at QUINTEK's
discretion.
3.6 All compensation and other payments to Executive hereunder shall be
subject to withholding for federal, state and local income taxes, social
security, disability and the like. 3.7 Other Benefits. Executive shall be
entitled to continue to participate in or receive benefits under all of the
Employee Benefit Plans of QUINTEK under which Employee may participate in
accordance with applicable laws and the terms of such plans in effect on the
date hereof, or under plans or arrangements that provide Executive with at least
substantially equivalent benefits to those provided under such Employee Benefit
Plans. As used herein, "Employee Benefit Plans" include, without limitation,
each pension, and retirement plan; supplemental pension, retirement, and
deferred compensation plan; savings and profit-sharing plan; stock ownership
plan; stock purchase plan; stock option plan; life insurance plan; medical
insurance plan; disability plan; and health and accident plan or arrangement
established and maintained by QUINTEK on the date hereof. Executive shall be
entitled to participate in or receive benefits under any employee benefit plan
or arrangement which may, in the future, be made available to QUINTEK's
executives and key management employees, subject to and on a basis consistent
with the terms, conditions, and overall administration of such plan or
arrangement. Nothing paid to Executive under the Employee Benefit Plans
presently in effect or any employee benefit plan or arrangement which may be
made available in the future shall be deemed to be in lieu of compensation
payable to Executive. Any payments or benefits payable to Executive under a plan
or arrangement in respect of any calendar year during which Executive is
employed by QUINTEK for less than the whole of such year shall, unless otherwise
provided in the applicable plan or arrangement, be prorated in accordance with
the number of days in such calendar year during which he is so employed. Should
any such payments or benefits accrue on a fiscal (rather than calendar) year,
then the proration in the preceding sentence shall be on the basis of a fiscal
year rather than calendar year.
3.8 Vacations. Executive shall be entitled to take up to twenty (20)
days of paid time off per year for vacation, and/or educational leave to attend
continuing education seminars, lectures, courses and professional conventions.
Vacation time shall accrue at the rate of 1.66 days per month of continued
employment. However, while vacation will accrue from start date, vacation time
may not be taken until after completion of at least six (6) months of continuous
employment pursuant to this Agreement, subject to coordination and approval of
scheduling by QUINTEK. Executive must request vacation leave at least four (4)
weeks in advance. No more than ten (10) days of vacation may be taken
consecutively unless otherwise approved by the Board. Once Executive accrues his
yearly allotment of vacation (i.e., twenty (20) days) Executive will not accrue
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any further paid vacation time (it will be "capped") until after he has uses his
accrued vacation to bring his accrued vacation time below the cap.
Notwithstanding the above, Executive is approved to take vacation on May 21
through May 24, 2004 and June 19 through June 27, 2004.Executive shall also be
entitled to all paid holidays, no less than 10 business days per year, given by
QUINTEK to its senior executive officers.
3.9 Offices. As per Section 1.1, Executive agrees to serve as a
director of QUINTEK, if elected or appointed thereto, provided he is indemnified
for serving in such capacity on a basis no less favorable than is currently
provided by QUINTEK's By-laws and any indemnification agreement with any other
director.
4. Business Expenses. Executive is authorized to incur reasonable expenses
for promoting and conducting the business of QUINTEK, including reasonable
expenditures for entertainment and travel. QUINTEK shall reimburse Executive
monthly for all such business expenses upon presentation of documentation
establishing the amount, date, place and essential character of the
expenditures, in such form as QUINTEK may require and sufficient to satisfy any
Internal Revenue Code requirements for such expenses to be deductible to
QUINTEK. Any expenditures in excess of an aggregate of One Thousand Dollars
($1,000) per month shall require the prior written approval of the Board or the
Chief Financial Officer.
5. Health Insurance. Employee shall be entitled to receive medical and dental
insurance for Employee and his/her family. The corporate contribution to this is
not to exceed $500/month.
6. Issuance of Equity.
6.1 Executive shall receive a grant of 250,000 shares of Series A
Preferred Stock upon execution of this agreement. QUINTEK acknowledges that it
has committed to sell to Executive additional shares of common stock (or grant
to Executive rights to purchase additional shares of common stock) in QUINTEK so
that, including all options or shares previously issued to or purchased by
Executive, Executive would own, in the aggregate, shares of common stock or
rights to purchase shares of common stock representing five percent (5%) of the
current outstanding common stock in QUINTEK on a fully-diluted basis after
taking into account the issuance of such additional shares to Executive and
assuming the issuance of all other shares subject to currently outstanding
options or warrants. QUINTEK and Executive acknowledge and agree that the
purchase price for such shares (or the exercise price for such options) will be
equal to seventy five percent (75%) of the five day closing average price of the
Company's common stock immediately prior to the execution of this Agreement, but
they have otherwise not as yet determined how such additional shares and/or
options will be issued to Executive. It is contemplated that QUINTEK and
Executive will enter into a separate agreement or agreements on these additional
shares and/or options within 90 days of the date of this Agreement (or upon the
authorization of additional shares by the Shareholders of Quintek. Specifically,
it is presently anticipated that the new stock agreement(s) will have, at
minimum, new termination and repurchase provisions, with the termination
provisions to be consistent with the termination provisions set forth in this
Agreement. The agreement(s) also will contain provisions providing Executive
with pre-emptive rights to purchase additional shares of common stock of QUINTEK
under certain circumstances. Options shall vest according to the following
schedule: Right to purchase 1.25% of outstanding common stock, upon the
authorization of additional shares by the Shareholders of Quintek, assuming that
authorization of more shares is approved by the shareholders of the Company,
options giving Executive the right to purchase an additional 1.25% of
outstanding common stock at the time of grant, will be granted to executive upon
the 1 year anniversary of this Agreement for the following three years. In the
event of a sale of QUINTEK, or any other event that may impede QUINTEK's ability
to fulfill its obligations under this Agreement, all options will immediately
vest.
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6.2 Manner of Exercise of Options. The options or rights to purchase
common stock described in Paragraph 6.1 above (collectively, the "Option") may
be exercised in whole at any time, or in part from time to time, during the
period commencing on the date of issuance ("Base Date") and expiring on the date
of expiration ("Expiration Date") or, if any such day is a day on which banking
institutions in the City of New York, New York are authorized by law to close,
then on the next succeeding day that shall not be such a day, by presentation
and surrender of Options to QUINTEK at its principal office, or at the office of
its stock transfer agent, if any, with QUINTEK's Option Exercise Form duly
executed and accompanied by payment (either in cash or by certified or official
bank check, payable to the order of QUINTEK) of the Exercise Price for the
number of shares specified in such Form and instruments of transfer, if
appropriate, duly executed by the Holder or its duly authorized attorney.
6.3 Alternative Manner of Exercise. In lieu of exercising the Option in
the manner set forth in Paragraph 6.2, Options may be exercised in whole at any
time, or in part from time to time, during the period commencing on the Base
Date and expiring on the Expiration Date or, if any such day is a day on which
banking institutions in the City of New York, New York are authorized by law to
close, then on the next succeeding day that shall not be such a day, by
presentation and surrender of Options to QUINTEK at its principal office, or at
the office of its stock transfer agent, if any, with QUINTEK's Option Exercise
Form duly executed and accompanied by payment (either in cash or by certified or
official bank check, payable to the order of QUINTEK) of $.001 for each share
issuable upon exercise of Option, the number of such shares (collectively, the
"Alternative Option Shares") to be determined as hereinafter set forth, and
instruments of transfer, if appropriate, duly executed by the Holder or its duly
authorized attorney. Alternative Option Shares shall be determined according to
the following formula:
Z = A x (MP - EP)
MP
For the purpose of this Section 1.2, the following definitions
shall apply:
(a) "Z" shall mean the number of Alternative Option
Shares;
(b) "A" shall mean that number of shares of Common
Stock issuable upon exercise of Option or the part thereof
being exercised had such Option or part been exercised
pursuant to Section 1.1;
(c) "MP" shall mean the average of the closing prices
per share of the Common Stock on the securities exchange or
automated quotation system on which the Common Stock is
primarily traded for the ten (10) trading days ending on the
trading day prior to the date Option is presented and
surrendered to QUINTEK; and
(d) "EP" shall mean the Exercise Price (as
hereinabove defined).
6.4 Partial Exercise; Taxes. If Option should be exercised in part
only, QUINTEK shall, upon surrender of Option for cancellation, execute and
deliver a new Option evidencing the rights of Executive thereof to purchase the
balance of the shares purchasable hereunder. Upon receipt by QUINTEK of Option,
together with the Exercise Price, at its office, or by the stock transfer agent
of QUINTEK at its office, in proper form for exercise, Executive shall be deemed
to be the holder of record of the shares of common Stock issuable upon such
exercise, notwithstanding that the stock transfer books of QUINTEK shall then be
closed or that certificates representing such shares of Common Stock shall not
then be actually delivered to Executive. QUINTEK shall pay any and all
documentary stamp or similar issuer taxes.
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7. Property Rights, Confidential Information, and Trade Secrets of
QUINTEK.
7.1 As used in this Agreement, the terms "Confidential Information" and
"Trade Secrets", collectively or individually, shall mean the following:
7.1.1 QUINTEK's contracts, marketing plans, purchases and
sales, whether realized or in development, including, without
limitation, any source of ideas or projects;
7.1.2 Information relating to QUINTEK's business, whether or
not such information is in writing;
7.1.3 Information relating to QUINTEK's clients and
candidates, including such persons' resumes, job descriptions, hiring
needs and preferences, computer systems, expertise, business endeavors,
purchasing habits, and other information concerning QUINTEK's business
relations with its clients and candidates;
7.1.4 Information of a personal nature relating to QUINTEK's
employees, officers and managers, including such persons' salaries,
benefits, special skills and knowledge, identities and performance; and
7.1.5 QUINTEK' records, including, but not limited to,
electronic, written, typed, or printed, including without limitation
client and candidates lists and charts, other lists and charts,
memoranda, notebooks, correspondence, notes, letters, plans, proposals,
contracts, files, resumes, job descriptions, employee files, manuals,
blank forms, materials and supplies, and all information therein
contained, and similar items affecting or relating to the business of
QUINTEK, whether prepared by QUINTEK, Executive, or otherwise, and any
other tangible source of information (whether or not written) relating
to QUINTEK.
7.2 Executive, for the duration of his employment has had and will have
access to and become acquainted with Trade Secrets and/or Confidential
Information of QUINTEK which are owned by QUINTEK and which are regularly used
in the operation of the business of QUINTEK. Executive shall not disclose any of
the aforesaid Trade Secrets and/or Confidential Information, directly or
indirectly, or use Trade Secrets and/or Confidential Information in any way,
either during the term of this Agreement or at any time thereafter, except
actions undertaken for the benefit of QUINTEK as required in the course of his
employment. All Trade Secrets and/or Confidential Information coming into his
possession shall remain the exclusive property of QUINTEK and shall not be
copied and/or removed from the premises of QUINTEK under any circumstances
whatsoever without the prior written consent of QUINTEK, except in the normal
course of Executive's employment. Under no circumstance can such Trade Secrets
and/or Confidential Information be allowed to fall directly or indirectly into
the hands of or be used by any competitor or potential competitor of QUINTEK's.
To the extent that Executive originates, develops, or reduces to writing Trade
Secrets and/or Confidential Information, Executive does so within the scope of
his employment. QUINTEK possesses all right, title, and interest in all
Confidential Information and/or Trade Secrets, whether created by QUINTEK or
Executive.
7.3 In the event of any termination of employment with QUINTEK,
Executive agrees to deliver promptly to QUINTEK all files, records, documents,
drawings, client or candidate lists, resumes, job descriptions, plans,
proposals, contracts, charts, other lists and charts, equipment, books,
notebooks, memoranda, reports, correspondence, or other written, electronic or
graphic records and the like, and all other Trade Secrets and/or Confidential
Information relating to QUINTEK's business, which are or have been in his
possession or under his control, in good condition, ordinary wear and tear and
damage by any cause beyond the control of Executive excepted.
7.4 Executive shall not, following the termination of his employment
with QUINTEK, either directly or indirectly, or by action in concert with
others, either for Executive's own benefit or for the benefit of any other
person or entity:
7.4.1 Make known to any person the names, addresses or
telephone numbers or any of the candidates, clients or projects of
QUINTEK or any other Trade Secrets and/or Confidential Information
pertaining to them;
7.4.2 For a period of twelve (12) months following the
termination of Executive's employment with QUINTEK, divert, interfere
with or take away, or attempt to divert, interfere with or take away,
any of the projects, clients or candidates of QUINTEK, including
without limitation all those clients, candidates and projects with whom
Executive became acquainted during his employment with QUINTEK, either
for Executive's own benefit or for any other person or entity;
7.4.3 Induce in any way, directly or indirectly, QUINTEK's
employees, and/or persons working with and/or contracting with QUINTEK,
to disclose QUINTEK's Trade Secrets and/or Confidential Information to
any person;
7.4.4 For a period of twelve (12) months following the
termination of Executive's employment with QUINTEK, hire or take away,
or attempt to hire or take away, any of QUINTEK's employees, and/or
independent contractors, and/or persons working with and/or contracting
with QUINTEK; and
7.4.5 For a period of twelve (12) months following the
termination of Executive's employment with QUINTEK, induce or influence
(or seek to induce or influence) any person who is engaged (as an
employee, agent, independent contractor, or otherwise) by QUINTEK to
terminate his or her employment or engagement or breach their duties of
obligations owed to QUINTEK.
7.4.6 Executive agrees that he shall not disparage QUINTEK to
clients or other third parties, or otherwise make statements or take
actions which would place QUINTEK in a negative light. Similarly,
QUINTEK agrees that its officers and directors shall not disparage
Executive to clients or other third parties, or otherwise make
statements or take actions which would place Executive in a negative
light.
7.5 For the duration of this Agreement, Executive shall not, directly
or indirectly, either as an employee, employer, consultant, agent, principal,
partner, stockholder, corporate officer, director or in any other individual or
representative capacity, engage or participate in any business that is in
competition in any manner whatsoever with the business of QUINTEK, without the
prior written consent of the Board or the Chief Financial Officer. "Directly or
indirectly" means that Executive will not benefit in any way, shape or form from
any affiliation or consultation with any business that is engaged in film based
imaging, custom application development, staffing and permanent placements,
whether or not he is an owner, director, officer, shareholder, employee or
consultant for such firm or entity.
8. Entire Agreement, Etc. This Agreement contains the entire and exclusive
agreement of the parties hereto. No prior written or oral representations
between them originating before the date of the Agreement not embodied herein
shall be of any force or effect. The parties have mutually participated in the
negotiation and preparation of this Agreement and no rule of construction that
the Agreement shall be construed against the drafting party shall apply hereto.
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9. Modification. This Agreement may not be superseded and none of the
terms of this Agreement can be waived or modified except by an express written
agreement signed by all parties hereto. Any oral representations or
modifications concerning this Agreement (including any fully executed oral
agreements or modifications) shall be of no force or effect unless contained in
a subsequent written modification signed by all parties.
10. Release of Any Prior Bonus Claims. As further consideration for this
Agreement, Executive, on his own behalf and on behalf of his heirs, spouse,
executors, administrators, employees and agents, hereby releases and discharges
QUINTEK and its parents, subsidiaries and affiliates, and each of their
respective officers, managers, directors, partners, employees, predecessors,
successors, assigns, stockholders, representatives and agents, individually and
collectively, of and from any and all known or unknown liabilities, claims,
demands or any other thing for which he or any of them have or may have a known
or unknown cause of action, claim, or demand for damages, whether certain or
speculative, which may have at any time prior hereto come into existence or
which may be brought in the future in connection with obligations by QUINTEK to
pay any bonus of any kind to Executive which have arisen at any time prior to
the date of this Agreement.
11. Severability. If any term, provision, covenant, or condition of this
Agreement (the "Provision") is held by an arbitrator or a court of competent
jurisdiction to be invalid, void, or unenforceable, the remaining provisions of
this Agreement shall remain in full force and effect and in no way shall be
affected, impaired, or invalidated. If possible, the Provision shall remain in
effect but shall be modified by the court only to the extent necessary to make
it reasonable.
12. Arbitration. If a dispute should arise between QUINTEK and Executive,
or in the event of any claim arising under or involving any provision of this
Agreement, Executive and QUINTEK agree to make all efforts to resolve these
disputes through (1) voluntary and non-binding mediation; and (2) final and
binding arbitration.
This policy applies to, but is not limited to, all disputes relating to
termination of employment, termination or breach of this Agreement, or alleged
unlawful discrimination and/or unlawful harassment. Disputes covered include,
but are not limited to, the following: (a) alleged violations of federal, state
and/or local constitutions, statutes or regulations (including but not limited
to anti-discrimination and anti-harassment laws); (b) claims based on any
purported breach of contractual obligation (including but not limited to breach
of the covenant of good faith and fair dealing and wrongful termination or
constructive termination); (c) claims based on any purported breach of duty in
tort, including but not limited to violations of public policy; and (d) claims
arising under or involving any provision of this Agreement.
Notwithstanding the above, the following types of disputes are
expressly excluded and not covered by this Agreement or policy: (a) disputes
related to worker's compensation and unemployment insurance; (b) claims for
injunctive relief which relate to or arise out of confidentiality or
noncompetition conditions of employment, trade secrets, intellectual property or
unfair competition; and (c) disputes or claims that are expressly excluded by
statute or are expressly required to be arbitrated under a different procedure
pursuant to the terms of an employee benefit plan.
IN CONSIDERATION FOR AND AS A MATERIAL CONDITION OF EMPLOYMENT AND
CONTINUATION OF EMPLOYMENT WITH QUINTEK, EXECUTIVE AND QUINTEK AGREE THAT
ALTERNATIVE DISPUTE RESOLUTION, INCLUDING FINAL AND BINDING ARBITRATION, SHALL
BE THE EXCLUSIVE MEANS FOR RESOLVING COVERED DISPUTES; NO OTHER ACTION MAY BE
BROUGHT IN COURT OR IN ANY OTHER FORUM. THE PARTIES ACKNOWLEDGE AND AGREE THAT
BY SIGNING THIS AGREEMENT THEY ARE WAIVING THEIR RIGHTS TO COURT ACTION AND TO
TRIAL BY JUDGE OR JURY.
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IF A DISPUTE IS SUBMITTED TO ARBITRATION, THE DISPUTE SHALL BE SETTLED
BY ARBITRATION IN CAMARILLO, CALIFORNIA, AND JUDGMENT UPON THE AWARD RENDERED
MAY BE ENTERED IN ANY COURT OF COMPENTENT JURISDICTION. THE ARBITRATION SHALL
TAKE PLACE UNDER THE AUSPICES OF THE JAMS/ENDISPUTE ("JAMS") IN ACCORDANCE WITH
JAMS' EMPLOYMENT DISPUTE RESOLUTION PROGRAM. THE PARTY REQUESTING ARBITRATION
SHALL GIVE A WRITTEN DEMAND FOR ARBITRATION TO THE OTHER PARTY SETTING FORTH A
STATEMENT OF THE NATURE OF THE DISPUTE, THE AMOUNT INVOLVED AND THE REMEDIES
SOUGHT. QUINTEK SHALL PAY ALL THE UP-FRONT COSTS OF THE ARBITRATION, INCLUDING
FILING AND HEARING FEES, BUT EACH PARTY SHALL PAY ITS OWN ATTORNEY'S FEES.
Nothing in this Agreement to engage in alternative dispute resolution
shall be construed as precluding Employee from filing a charge with the Equal
Employment Opportunity Commission ("EEOC"), the National Labor Relations Board
("NLRB") or other federal, state or local agency, seeking administrative
assistance in resolving claims. However, any claim that is not resolved
administratively through such an agency shall be subject to this Agreement and
the ADR Policy.
This agreement to engage in alternative dispute resolution does not
alter or otherwise affect Employee's employment under this Agreement. This
section and the ADR Policy shall survive and continue in effect after the
termination of employee's employment and/or the expiration of this Agreement.
13. Choice of Law. This Agreement shall be governed by and interpreted with
the laws of the State of California.
14. Employment Policies. Executive shall be subject to QUINTEK's Employee
Handbook and such other employee policies as QUINTEK may establish from time to
time, which Handbook and policies are subject to revision. To the extent the
Agreement differs from or contradicts QUINTEK's other employment policies,
whether oral or written, this Agreement shall control.
15. Waiver. The failure of either party to insist on strict compliance with
any of the terms of this Agreement shall not be deemed a waiver of that term or
of that party's right to subsequently enforce that term.
16. Attorneys' Fees. The parties hereto agree to bear their own costs and
attorneys' fees incurred in the negotiation and drafting of this Agreement or
otherwise incurred prior to the date of execution hereof.
17. Notice. Any notices, requests, demands, or other communications with
respect to this Agreement shall be in writing and shall be (i) personally
delivered, (ii) sent by facsimile transmission, (iii) sent by the United States
Postal Service, registered or certified mail, return receipt requested, or (iv)
delivered by a nationally recognized express overnight courier service, charges
prepaid, to the addresses set forth below except that any communications from
Executive to QUINTEK shall also be sent to 0000 Xxx Xxxxx Xxxx, Xxxxxxx Xxx, XX
00000 (such addresses to be changed by parties as they may specify from time to
time in accordance with this Section). Any such notice shall, when sent in
accordance with the preceding sentence, be deemed to have been given and
received on the earliest of (i) the day delivered to such address, (ii) the day
sent by facsimile transmission, (iii) the third business day following the date
deposited with the United States Postal Service, or (iv) 24 hours after shipment
by such courier service.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
EMPLOYER:
QUINTEK TECHNOLOGIES, INC.
By:
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Its:
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EMPLOYEE:
Xxxxxx Xxxxxxxx
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[address]
/s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
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